Minister for Immigration and Citizenship v SZGUR
[2010] HCATrans 250
[2010] HCATrans 250
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S179 of 2010
B e t w e e n -
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Appellant
and
SZGUR
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
FRENCH CJ
GUMMOW J
HEYDON J
CRENNAN J
KIEFEL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON FRIDAY, 24 SEPTEMBER 2010, AT 10.00 AM
Copyright in the High Court of Australia
MR S.B. LLOYD, SC: I appear in this matter with MR G.R. KENNETT for the Minister. (instructed by Clayton Utz Lawyers)
MR G.C. LINDSAY, SC: May it please the court, I appear with MR L.J. KARP for the first respondent. (instructed by Dobbie and Devine Immigration Lawyers Pty Ltd)
FRENCH CJ: Yes, Mr Lloyd.
MR LLOYD: Your Honour, broadly speaking, there are three questions that arise in this matter. The first is did the Federal Court err in concluding that the Tribunal had not considered a request by the respondent’s agent that the Tribunal arrange an independent assessment of the respondent’s medical health. The second is did the court err in concluding that a precondition to the making of a valid decision was the Tribunal consider that request. The third is was the court correct to conclude that it was open to the Tribunal to reject the request and hence it was not bound to make a further inquiry. The Tribunal, of course, contends that all of these questions should be answered in the affirmative. I will address them in turn. I should say the third question really only arises on the notice of contention.
The first question is, was the request considered? It is convenient to take the Court to the salient aspects of the appeal book, as this is essentially a factual matter. It begins on page 213. It is the first relevant document I need to take the Court to. This is an invitation to comment on, or respond to, information in writing, and the Court will see – it goes for several pages – the Tribunal is identifying a number of inconsistencies in the applicant’s evidence over time under a number of headings. The detail is not critical for the purposes of this appeal. On page 217 at line 40, there is an invitation to “give comments or respond to” the information. That is to be done by 28 April. Turning over to page 221, the respondent’s agent asks for an extension of time. That request is made on the last day upon which a response was initially due.
CRENNAN J: Do you accept that the initial letter was an invitation given in writing under section 424A?
MR LLOYD: We say that it probably was not, in light of this Court’s decision in SZBYR. The inconsistencies are not information of the kind that engages 424A. Although the Tribunal obviously took a cautious view and gave the opportunity, we say it probably is just really a request for additional information under section 424, but not a great deal turns upon it for our case, but ‑ ‑ ‑
GUMMOW J: Who wrote the notations on page 221, in particular, 424A response, do we know?
MR LLOYD: I do not know, but I would assume it would be in the Tribunal because these are taken out of the Tribunal’s files.
CRENNAN J: Well, it might be important in terms of section 426(2) and (3) in the sense that there might be a question about whether the agent’s response is written notice that the applicant wants the Tribunal to obtain oral evidence, and then there is the consequence in subsection (3).
MR LLOYD: Except, your Honour, 426 only applies to a notice given within seven days in response to an invitation to a hearing. This is all after the last hearing. This was after a fourth hearing.
CRENNAN J: All after a fourth hearing?
MR LLOYD: This letter, whether it be a 424A notice or not, was sent after the last hearing.
CRENNAN J: Yes, I see.
MR LLOYD: Then there is a request for an extension of time on page 221. That is granted on page 223. A four‑week extension is given. Then on page 226 there is a request, about line 55, for a further two weeks extension of time. This request mentions and in part is premised upon the fact that the respondent was suffering from depression at that time, so at the time the letter was sent in on 20 May. There was a medical certificate, which is on page 233, which indicates that he is unfit for work for two weeks and so there was a request for an extension of time. The letter on page 226 also says that he has asked him to obtain a detailed psychological report.
Then the Tribunal responds to that at page 250 and instead of giving a two‑week extension gives a six‑week extension of time. Then on page 253, on 20 June, so that is about two weeks before the time to respond to the invitation expired, this letter is sent which is in many respects the critical letter for the respondent’s case. It refers towards the bottom of page 253, about line 50, to memory problems and the person being mixed up. Over on to page 254 there is a reference again to the ongoing mental problem and depression, “he is unable to provide categorical comments”, which is to say he cannot explain the inconsistencies that were all put to him.
Then in the second and fourth paragraphs on that page there is, in substance, a request that the Tribunal rely upon the earlier claims rather than the later inconsistent claims. In between those paragraphs there is a reference to a request for a detailed psychiatric report and that he had given the client a letter to hand to the psychiatrist, “Now he claims that I never gave him such a letter.”
To further assess his mental health situation, I would like to request you to arrange independent assessment of his mental health, if required.
Exactly what the condition or aspect of that is is not entirely clear. That is the request which ultimately his Honour Justice Rares held was not considered. Over on page 256 is a medical certificate so although – at least according to the migration agent – the letter was not handed to the psychiatrist, obviously something was done because on 16 June, which is four days before the letter, the psychiatrist has prepared a medical certificate which says that he:
is being treated for Bipolar Mood Disorder. He is receiving regular medication.
The tense and everything makes it unclear how long that has been for, so we do not know how long he has been treating with medication. He “attends Consultations”. We do not know what effect the medications might have on his health or other issues related to bipolar mood disorder. We do not know how long he took it. Was he on medication at the time he made the inconsistent statements? Nothing of that is put whatsoever before the Tribunal.
We then go to the Tribunal’s decision. The relevant part of that is at page 8 and in paragraphs 33 to 35 there is a summary of the letter which I just took the Court to which summarises pretty much all of it except for – I accept – the request, the conditional request, as I would put it, for the further assessment. We say from that it is clear that the Tribunal read the letter. It is not a case of having just not even read the letter.
Then the Tribunal returns to the issue of mental health on page 34 of its reasons in paragraph 125. Again it shows that it was aware of and had read the letter. It refers to both of Dr Khan’s medical reports. Critically, after noting those things and saying that they are “taken into account” the Tribunal says that it:
was not provided with any further details about the applicant’s condition by himself or Dr Khan nor did the medical certificates specifically address the issues raised in the Tribunal’s letter of 11 April –
That is the letter relating to the inconsistencies. We say what it is saying there is, although the Tribunal acknowledges and does not dispute that he has certain medical conditions it does not have any evidence that links the medical conditions to the inconsistencies.
CRENNAN J: Does this mean the letter was not addressed during the course of – was there any subsequent hearing?
MR LLOYD: There was no subsequent - there had been four hearings. It really was after the last hearing.
CRENNAN J: After the fourth hearing.
MR LLOYD: The Tribunal said, “At various points in time you have said inconsistent things. I am going to put them all to you and give you an opportunity to, as best you can, tell me what I should do with this”. One of the things in the letter says is “As a result of the inconsistencies I may disbelieve all your claims” which is essentially what transpired.
FRENCH CJ: Is it right to say that the Tribunal’s decision ultimately involves an assumption or an inference that the inconsistencies were not to be explained by the applicant’s medical condition?
MR LLOYD: We say no, that just the Tribunal bases its decision on the basis that it has evidence of inconsistencies and it does not have any evidence or basis to explain away those inconsistencies. So it basically says, well, there is some evidence about medical conditions, you have not, however, linked the medical conditions in such a way that would allow me to put all the inconsistencies aside, and what the Tribunal does in the balance of paragraph 125 is, as we would say – it, in a sense, says, well, you have not given me any evidence that actually links it but, in addition, I have had a look at it and the kind of inconsistencies are not the inconsistencies that the Tribunal considered would be readily explained by simply memory loss. So to that extent, the Tribunal is saying it is not self evident to me that these things are readily explicable, so you have not given me evidence to do it and I am not prepared to make a favourable inference that these kind of inconsistencies can be explained away. If I then turn to Justice Rares’ judgment and the relevant passages that begin ‑ ‑ ‑
GUMMOW J: What did the federal magistrate say?
MR LLOYD: This entire issue only arose before Justice Rares. It was not in issue before the magistrate, as to whether it had been considered or not considered. The argument before the magistrate was that it was a Prasad Case and the Tribunal was ‑ ‑ ‑
GUMMOW J: The Federal Court was hearing an appeal. What was the relevant ground of appeal which based this particular matter you are now taking us to in Justice Rares?
MR LLOYD: I am not sure that the paperwork really reflects it in a sense that ‑ ‑ ‑
FRENCH CJ: The appeal notice is at 333, I think, is it not?
MR LLOYD: The first and second grounds in the notice of appeal are essentially similar to that in the first ground in the notice of contention and the third ground is equivalent to the second ground in the notice of contention, and then the fourth ground relates to an alternative basis which is not in issue.
GUMMOW J: What is the fourth ground?
FRENCH CJ: That is the alternative basis finding?
MR LLOYD: Sorry, I should draw out that in the third ground there is in bracketed text that says “or to consider doing so”. So:
to obtain an expert opinion as to the appellant’s memory (or to consider doing so) ‑ ‑ ‑
HEYDON J: In the amended application before the Federal Magistrates Court, this point does not seem to have been taken, is that right?
MR LLOYD: No. The history of the matter is kind of convoluted. It ran on one basis with Ms Jowett appearing for the applicant, then Mr Karp came in and reopened and ran a Prasad ground to the effect that it was unreasonable not to make an inquiry. That was dismissed. Then it came on before Justice Rares, in which time the respondent was not represented, and Justice Rares thought that there was a ground which was – there was a failure to consider the evidence and so it was then referred to an order 80 referral in which Mr Karp came into and he, presumably – I was not in it at that point – put on this amended notice of appeal which did not necessarily pick up entirely what Justice Rares had raised, but at the hearing, the point which was ultimately successful is the words “or considered doing so”, in effect, in ground 3 of the notice of appeal.
So the question of whether of not there had been a factual failure was not really dealt with before the magistrate. On page 350 of the book at paragraph 32 at about line 50, his Honour said:
There is nothing to suggest that the tribunal engaged in an active intellectual process –
That “nothing to suggest” seems to be in context or reference to nothing in the reasons to suggest. That becomes clearer from the earlier reference at paragraph 26 on page 349 to no express reference in the reasons. Then turning back to page 350, his Honour looks at the ambit of what should be in the reasons. We do not take issue with the first, second or third sentences of paragraph ‑ ‑ ‑
GUMMOW J: What is said in Telstra Corporation that so attracted the judge that he cited himself, looking at paragraph 32?
MR LLOYD: Both Lafu and Telstra pick up on the expression “active intellectual process” to say you need to do something more significant than – something less than an act of intellectual process. In paragraph 33 no issue is taken with the first three sentences but the fourth sentence, starting on about line 16, says “That obligation”, that is the “obligation” in 430:
That obligation involves the tribunal recording what it did –
Now, we say that that is an erroneous generalisation from what section 431 actually says. It does not require it to record what it did. I accept that it does not require it to do what it was asked to do or supposed to do or might have done but it also does not, in general terms, require to record what it did. His Honour then refers to a passage from the judgment in this Court in Yusuf which makes the point that if there is an obligation to give reasons in relation to material findings of fact and there is no finding made, you could draw an inference that the Tribunal did not think it was material. Then, presumably, that same line of reasoning leads in paragraph 34 to the conclusion that the Tribunal in this case, because it did not record what it did, it did not record that it had considered the request, therefore, it did not consider the request. It had overlooked it, as his Honour concluded.
In paragraph 37, there is a reference which at least may be seen, on one view, as if his Honour was putting an onus upon the Minister to prove that it had been considered. If that is what his Honour was doing we say that reveals error. We say that his Honour misconstrued section 430 and thought that an inference was available and should be drawn that because there was no mention in the reasons as to whether or not the particular investigatory power was going to be exercised, therefore, it could be inferred that it was not even considered. Our answer to that is that it is wrong. That inference was not available and certainly should not have been drawn and this Court should find error in it.
That is the first of our grounds of appeal. It is convenient because it raises a similar topic to deal with ground 8 of the notice of contention. That is not in the appeal book. I am not sure why, but it is not. The thrust of it is if my client were to succeed on the basis that the Tribunal did in fact consider the request, they should still succeed because they did not give it proper, genuine and realistic consideration.
Now, we say if implicit in that ground is the view that you can tell the proper, genuine and realistic consideration was not given because if it was given the investigation had to follow, that is just another way of saying there was an obligation to carry out the investigation, which I will deal with under the third question. If the ground means something different and if the ground accepts that the Tribunal could have given it genuine, proper and realistic consideration but still not acquiesced to the request, then we say that ground must lose for the exact same reason that I have outlined that we say Justice Rares erred because there is no evidence as to what kind of consideration was given and no basis to infer that any consideration of any particular or degree was not given.
The next question - and this is in a sense all on the assumption that we are unsuccessful on the first ground - then arises what are the consequences of failing to consider, or adequately consider, or properly consider, and relevantly is the consideration of a request for the exercise of an investigatory power, a precondition to the valid decision making. Justice Rares relies on a couple of reasons to get to that result. The notice of contention advances several more. I propose first to deal with Justice Rares and then to deal with the notice of contention.
Justice Rares on page 350, paragraph 30 in the first sentence or two, and in paragraph 37 in the last sentence, seems to suggest that one reason that there was an obligation to consider was because the request for the exercise of the power was contained in a response to a 424A notice. The other justification, and it may well be that these are all combined, is his Honour relied upon a decision of the Full Court of the Federal Court in Maltsin. That can be seen at paragraph 27, then at the end of 31 and in 36. I propose to deal first with the decision in Maltsin (2006) 88 ALD 304. It concerned the construction of section 361 of the Act.
GUMMOW J: What do we get out of this case?
MR LLOYD: We say nothing. What we say is Justice Rares should have got nothing out of it because it is a case where, under section 361 of the Act, there is an express duty to have regard to a request to take evidence from a particular person in the circumstances prescribed by the provision.
What the Full Court found in that case was that there had been a failure to have regard to it, and that that constituted a breach of section 361(3), and in the circumstances where that meant that a person wanted to advance oral evidence at the hearing and was not able to advance oral evidence at the hearing when they might properly have been able to, it was also a denial of procedural fairness. Their Honours found that that was a jurisdictional error. What we say is Maltsin has nothing to do with this case because the power which his Honour Justice Rares was concerned with was section 427(1)(d) ‑ ‑ ‑
GUMMOW J: What is the difference between that and 361?
MR LLOYD: The equivalent of 361 is 426 in the Refugee Review. Section 427(1)(d) is simply a power that says the Tribunal may:
require the Secretary to arrange for . . . any medical examination –
in effect. There is an equivalent power to 427 for the MRT, but it is not 361. There is no capacity in respect of 427 to apply, and no duty to consider a request express in the Act, unlike the position for 361 and, relevantly in the current case, 426. In 426, in relation to the RRT, a respondent is given seven days after they are invited to a hearing to indicate if they want to have evidence brought from a third person and then the Tribunal is bound to have regard to that request.
GUMMOW J: But not required to comply with it?
MR LLOYD: Not required to comply with it, and 427 is even less. There is not a requirement to have regard and ‑ ‑ ‑
CRENNAN J: That is the distinction you are emphasising.
MR LLOYD: Indeed. We say, insofar as I relied upon Maltsin, it really provided no assistance and 427 is in permissive language whereas 426, along with, of course, the usual 424A and 425, are all in mandatory language.
CRENNAN J: That is facultative.
MR LLOYD: Precisely so, your Honour. A question also arises whether a duty to review can ever oblige an inquiry – at least I should say, the question whether a duty to review can ever oblige an inquiry to be made was left open by this Court in SZIAI. I will not take the Court to it, but it is reported at (2009) 259 ALR 429, and in paragraph [25], the Court did not have to decide, but at least left open the possibility that there may be situations where there is some piece of evidence which can easily be obtained. It is critical to the decision, and the failure to do so could constitute a failure to review. What we say about that is that ‑ ‑ ‑
FRENCH CJ: That is where there is something staring you in the face, and you are just not looking at it.
MR LLOYD: That is so, but the point I want to make now is a different point which is that the jurisdictional error in such a case is, in that sort of case you are bound to make the inquiry. It is not a case where you are bound to consider making the inquiry. The breach is in situations where you are bound to do it, and you do not do it, and it is not, we say - it does not support an idea that a Tribunal has a duty to consider making inquiries.
There is a Full Court decision of the Federal Court, which is WAGJ v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277. This predates the decision of Justice Rares. It is not referred to by his Honour, as I recall, but in it, at paragraphs 24 and 25, their Honours conclude that there is no duty to consider the exercise of the investigative power in 427(1)(d). So to that extent, we say his Honour also erred. We say the Full Court was right.
Now, if I turn to the other way his Honour put it, it is not entirely clear that he did put it this way but there is a reference at paragraph 30 and at the end of 37 and, in any event, my friends put it this way in their notice of contention, that the invitation was a 424A invitation and therefore there was a duty to consider the response to it. We say that even if it be accepted that there is an implied duty to have regard to material that responds to or comments on the information which has to be put under 424A, that implied duty, we say, does not extend to requiring consideration of requests for the exercise of investigatory powers and it would be a curious result if a request that happened to be in a 424A letter had to be considered but not one sent the same day but not in response to a 424A letter.
We say 424A invites a response to or comment on information and it is not an invitation to review applicants to seek new exercises of investigatory powers. An additional answer which is dealt with in paragraph 30 of our submissions in‑chief relies upon this Court’s decision in SZBYR (2007) 237 ALR 609 and at paragraphs [17] to [21] the Court discusses the nature of the information that gives rise to an obligation under 424A. In that case, like this case, the information in issue was inconsistencies between statements made at different points in time and the Court ‑ ‑ ‑
FRENCH CJ: This is really just an exposure of the Tribunal’s thought processes, is it not?
MR LLOYD: Exactly. What the Court said in that case and we say, in a sense, although the Court – I accept entirely the Tribunal thought 424A was engaged and perhaps it is a pretty technical point for the Minister to make, but technically speaking, if 424A was not engaged, then if the duty to consider arises because it is a response to a 424A notice, then it would not technically arise, we say, in any event, but that is an additional reason. In our submissions at paragraphs 31 and 32 we also deal with the possibility that – the situation in relation to requests under 424 for information and we just rely upon that. I do not think I need to develop that.
Now, we say, of course, that the Tribunal will consider such requests and we say there is no basis for saying it did not consider it in this case, but we say that there is no duty and the only provision of the Act which creates a duty to consider is section 426(3) and that involves a limited entitlement to request a Tribunal to seek evidence. Even that is a duty to have regard to, but it is not a duty to obtain and our submission is it would be surprising if, in relation to the express power to ‑ ‑ ‑
FRENCH CJ: This is in relation to calling a witness.
MR LLOYD: Indeed.
FRENCH CJ: What implications does it have for a request that the Tribunal conduct a medical assessment?
MR LLOYD: We say that in a situation where there is an express power to ask the Tribunal to call a witness but it is not to be compelled, that is obviously express, then it would be surprising if one were to infer an obligation to consider a request in abstract, not even referable to an express power. Perhaps it does not go too far, but that is the submission – perhaps gets additional weight from the operation 422B of the Act which could be seen as making 426 an exhaustive statement of when you can ask for additional evidence from the persons.
GUMMOW J: How does the system work, Mr Lloyd, if it emerges that the applicant for a protection visa may not have been mentally competent to make the application?
MR LLOYD: This Court held in SGLB that there is no competency requirement to make an application. Put it another way, you are not precluded from getting a protection visa just because you are mentally incompetent.
GUMMOW J: What is that authority?
MR LLOYD: SGLB. I will be taking the Court to it. The citation is (2004) 207 ALR 12.
GUMMOW J: We seem to have a series of Full Court decisions that do not pass through the eye of the reporter of the Commonwealth Law Reports, but anyhow.
MR LLOYD: I think that migration cases are not as of much interest to the reporter.
GUMMOW J: This is the third one we have been shown this morning. Anyhow, what comes out of SGLB?
MR LLOYD: I was going to take the Court to it in the context of ‑ ‑ ‑
GUMMOW J: Do not let me take you off your course, but I am just wondering where all this would go if the material put to the Tribunal was that this gentleman lacked mental capacity?
MR LLOYD: I think what the material they wanted the Tribunal to get was something which said because of his mental condition, that explains why he would say completely different things at different times. What exactly the Tribunal would do with that other than to say, well, maybe you are not lying, but I still do not know what the truth is, I am not sure that advances it a great deal more than that.
KIEFEL J: You are saying the question of capacity itself was never raised – lack of capacity?
MR LLOYD: Not the respondent’s lack of capacity. I think that the one point that is raised in the notice of contention is that the Tribunal lacked the capacity to deal with it because it was not qualified, but, no, nothing to do with the respondent’s lack of capacity. Now, that is all I wanted to say in ground 2 in relation to our appeal as to why Justice Rares is wrong. Going to the notice of contention, grounds 3 and 4 ‑ ‑ ‑
CRENNAN J: Can I just follow up and ask you this? I was just looking at the agent’s letter again, which is at 254 of the appeal book and at the top of the letter the agent says that the applicant:
is unable to provide categorical comments on the issues you have raised -
about the inconsistencies. What would be the procedure if that went so high as to suggest that the applicant could not give instructions in relation to the matters raised in the, if we call it the 424A letter?
MR LLOYD: What would be the procedures in the Tribunal?
CRENNAN J: Yes, if an applicant was simply not in a position to give instructions in relation to the Tribunal’s inquiries.
HEYDON J: Is there is some guardian ad litem technique?
MR LLOYD: There has not, in fact, been one that I am aware of. In terms of what the cases tell us happens is there is a line of authority which starts from a case called SCAR, I do not have the citation on it, but it is in the Full Federal Court, the thrust of which was if the Tribunal did not know that the respondent was not competent, then that was a failure to comply with section 425 and the person would get another hearing. But, that is it, another hearing and in circumstances where the Tribunal carries the hearing knowing that the person has whatever conditions they have. But, ultimately – and I will take the Court to SGLB where it does come up – people commonly, especially people in this class, have mental illnesses and they do the best they can with such support as they can muster from the community to advance their case.
GUMMOW J: There was some legislation dealing with wardship for infants, was there not?
FRENCH CJ: The Minister is a statutory guardian, I think, of minors but that is delegated by arrangement, I think, to State welfare departments, is it not?
MR LLOYD: I think that is so.
GUMMOW J: Can you give us the reference to that legislation at some stage?
MR LLOYD: We will, yes, your Honour.
GUMMOW J: I think we looked at it in a case.
MR LLOYD: I was about to move on to grounds 3 and 4.
GUMMOW J: But that legislation is confined to infants, is it?
MR LLOYD: To children, yes. I have a recollection that ‑ there are four grounds in the notice of contention which, in one way or another, support the claim that there was a duty to consider the request. Grounds 3 and 4 say that the duty arises out of the duty of procedural fairness and grounds 6 and 7 – 6 find it in combinations of sections 414 and 425 and 7 seems to be as a result of Part 7 in a more generic and overall sense. The essence of grounds 6 and 7, we apprehend from the written submissions of the respondents, is that if the Tribunal did not consider a request, that would subvert the hearing and in that way relying upon SZFDE 232 CLR 189 that there could be jurisdictional error.
Now, our answer to grounds 6 and 7 is that it is very difficult to see how the failure to consider per se could subvert a hearing. It may well be the failure to make the inquiry could subvert the hearing, but it is hard to see ever how a failure to consider could do that. Looking at it at the higher view which is could the failure to make the inquiry subvert the hearing, we say that this case bears no similarities to the High Court decision in SZFDE which, the Court may recall, involved fraud by a migration agent who told his clients not to go to the hearing in order to protect the agent.
At paragraph 53 in SZFDE, and I do not think it is on anyone’s list so I will just note the paragraph, the Court said that negligence by an agent will not be enough to subvert a hearing. We say it may well be, in this case, the respondent got poor advice when his agent decided rather than actually get the evidence from – I will go back a step. The situation was, two weeks before the end of time, rather than just get the report from Dr Khan, his own doctor, he has a doctor and he has got time, rather than get the report he makes this conditional request to the Tribunal that it should, if required, get the report. We say that maybe was not the best approach for the migration agent to take but on no view, we say, does it subvert the hearing.
Then in relation to grounds 3 and 4 which say that the duty to consider arises under either 424A or the common law procedural fairness, I have already addressed 424A in dealing with Justice Rares’ judgment. In relation to procedural fairness, my friends rely upon this Court’s decision in SZBEL 228 CLR 152 and also Saeed (2010) 267 ALR 204. Neither of those cases, we say, bear at all upon the question of whether or not procedural fairness extends to requiring someone to consider a request for investigative power.
SZBEL was a case about whether or not the Tribunal had sufficiently notified somebody of a new substantive issue and that the issue had not been an issue before the delegate and that was considered to be a breach of 425 and procedural fairness. Saeed was about the operation of section 51A, and when it excluded procedural fairness, and it was held in that case not to exclude procedural fairness, but we say it does not expand procedural fairness or even discuss the content of procedural fairness and does not stand for any proposition that procedural fairness imposes an obligation upon Tribunals, breach of which is a jurisdictional error, to consider requests to use facultative powers.
FRENCH CJ: This case, incidentally, the agent’s letter at page 253 was 20 June 2008 and then we had the Tribunal’s decision which was given on 3 September, there is nothing in the record about any response by the Tribunal to the agent’s request?
MR LLOYD: That is true. I have here the decision being 16 December. It certainly was notified, on page 265, on 16 December.
FRENCH CJ: That may have been the date of notification. I think the date the decision was signed was 3 September, on page 2 .
MR LLOYD: Yes. So from 20 June the agent had then almost three months to provide any additional evidence if he chose to do so. Presumably it occurred to him at some point that the Tribunal was not going to make the inquiries that were requested in that conditional kind of way. The only other thing I would say about grounds 3 and 4 and the natural justice reliance is that, although we say natural justice does not impose the duty in the first place, if we are wrong about that, we would rely upon section 422B to exclude any obligation to consider requests for exercising those powers. We say that Division 4, Part 7, at least the matters dealt with there include how information is to be provided to the Tribunal, when the Tribunal was bound to consider a request, that is mostly 426, also, what information it is bound to have regard to in 424(1).
Perhaps I should just note that there is an interesting difference between section 361, which is the MRT provision which deals with requesting information from witnesses, and section 426. They are very similar, but in the MRT, the entitlement to ask the Tribunal to get information from third persons extends to written information from third persons, not just appearing at a hearing. In relation to the RRT, it is a more limited power, and we say – that was the position prior to 422B being enacted. So one must infer that Parliament intended that there would be this distinction so that people in the MRT have slightly more capacity to ask the Tribunal to investigate than people in the RRT.
That raises now the last question I propose to deal with, which is, was the court below correct to conclude that it would have been open to the Tribunal to reject the request and, hence, was not bound to make further inquiry. That conclusion appears in the second part of paragraph 30 on page 350. That is where his Honour Justice Rares, and we obviously embrace this aspect of it, said it was open to the Tribunal to reject the request. So his Honour did not consider that the circumstances were such as to enliven a duty to inquire.
Grounds, as we understand them, 1, 2 and 5 of the notice of contention in effect take issue with that. Ground 1 is premised upon the contention in the beginning of the ground that the Tribunal made a finding that:
there was no connection between the First Respondent’s medical condition . . . and his memory -
Then it is said that there was no evidence to support that finding, or no probative evidence to support that finding. We say the answer to that is that the Tribunal did not make a finding in those terms. What it said was it did not have evidence that created the link. We say you cannot say there is no probative evidence of a lack of probative evidence to create a link so as to, through a double negative, say that the Tribunal had to accept the link unless it proved that there was not a link. We say that is wrong, in principle.
What the Tribunal does at 125, which I have already taken the Court to, is say, “Yes, he’s got these medical conditions. No one has given me any evidence which shows that the medical conditions actually have any impact on the inconsistencies and so far as I can tell it’s not self‑evident that they do” and so therefore the Tribunal made an adverse decision premised upon, at least in part, those inconsistencies.
We say that that does not engage ground 1 and the notion that there needs to be an evidential basis in order to in effect be not satisfied of something and we say that that is wrong. Ground 2a and b and ground 5 appear to us to advance the same point as each other which is that the Tribunal was bound in the circumstances to obtain further information by reason of either the duty to undertake a review or the need to reach a relevant state of satisfaction. Now, the relevant circumstances for that proposition seems to be that the Tribunal accepted that the respondent had a medical condition that might possibly have had some bearing on the inconsistencies and on the basis of that it is said there is a duty to inquiry.
Now, I take your Honours to SGLB (2004) 207 ALR. In paragraph [1] the Chief Justice agrees with the judgment of Justices Gummow and Hayne. Perhaps I will not read but I note in passing what the Chief Justice says in paragraph [19]. That relates to a notice of contention point in that case. I do so because it deals a bit with questions raised by your Honours Justices Gummow and Crennan about what one does with review applicants who suffer from mental illnesses.
Then from there, I take the Court to the judgment of Justices Gummow and Hayne, which begins at paragraph [22]. Then if I go to paragraph [32] it sets out the alleged errors and I note in particular here the second error:
(2)the tribunal erred in making findings as to the credibility of the respondent where there was no evidence before it which would enable it to assess the effects of PTSD on the credibility –
So quite similar to our present situation. I should perhaps also draw the Court’s attention to the third element. I do not think it is essential for this appeal, but because the Court asked, there was also a competence issue in this SGLB Case.
Going to paragraphs [42] and [43], the Court notes in [42] that the effect is to say that the Tribunal had to get evidence to find out what effect PTSD would have had on the capacity to give evidence which is, in substance, what the respondents say the Tribunal should have done here is to impose a duty to inquire and the Court then, in paragraph [43], posits two reasons – the second at least of which applies in this case as to why there is no duty. I also mention Justice Callinan said something fairly similar in paragraph [124].
Before the magistrate the issue was agitated that there was a duty to inquire in substance. That was the central point, really, before the magistrate, that it was a Prasad-type case and it was unreasonable not to have made further inquiries. At page 314, from about paragraph 156 until the end, which is about 10 pages, the magistrate gives reasons for why the case before him is different to Prasad noting for example that in Prasad the person did not know about the inconsistencies and the glaringly obvious answer was in the file, whereas in this case, the person had been told all about the inconsistencies and given an opportunity to respond. But if I can just say, we rely upon and gratefully adopt his Honour’s reasons from 156 and following as to why there is no duty to inquire in that case.
The case, I should say, also deals – his Honour also distinguishes the decision of Justice Flick in SZIAI which this Court subsequently overturned on appeal – but his reasons for distinguishing that case, we say, also are appropriate and we rely upon them.
That then only leaves remaining two grounds of the notice of contention which is ground 2c and d. They content that by failing to make additional inquiries, the Tribunal failed to have regard to the information about the medical condition. I think the thrust of it is the Tribunal got this information about the medical condition and in order to have regard to that information, properly have regard to it, it had to make further inquiries to see what impact it had on the respondent’s capacity to give evidence. In that way it seeks to create, again, something of a duty to inquire.
But the only real bridge to it is section 424 and the reasoning seems to be if you have some information which might, if you get additional information, be relevant, you have a duty to get that additional information in order to show whether or not the first information was relevant or not, and we say 424 does not operate in that fashion. May it please the Court, these are our submissions.
GUMMOW J: Where would the Federal Court decision, if it stood, leave the situation if the matter went back? What would have to be done? It is all very well to say the Tribunal has to make inquiries, but what does that mean? Does that involve the co‑operation of the appellant in some way? The applicant, I should say, for the visa in some way? Choice of a particular medical practitioner? Did they just look up dictionaries about what is said to involve in a particular mental condition?
MR LLOYD: Difficult to know exactly but presumably the Tribunal ‑ ‑ ‑
GUMMOW J: There is a range of medical opinions on all sorts of questions about particular patients. We have all heard of getting a second opinion.
MR LLOYD: I mean, in these circumstances the Tribunal would have to find a doctor who was prepared to say whether or not the inconsistencies given at different points in time could be explained by the disorder or the mental condition that the person had at that various point in time. That presumably is what they say should have been done and no doubt what they would tell the Tribunal it would have to do on a remitter.
GUMMOW J: Who would the patient be of the relevant medical practitioner?
MR LLOYD: The first respondent, I suppose. I should say that although ‑ ‑ ‑
GUMMOW J: There are medical ethics questions running around in the background of this that do not seem to be articulated in the Federal Court.
FRENCH CJ: There are some statutory provisions where you can effectively require Commonwealth medical officers to examine people as a condition of them getting benefits, for example, Social Security Act or Veterans Affairs and so forth. There is no such equivalent here, is there?
MR LLOYD: His Honour referred to and the whole decision is based upon 427(1)(d) which says that the Tribunal may:
require the Secretary to arrange for the making of any investigation, or any medical examination ‑ ‑ ‑
FRENCH CJ: That has no coercive power attached to it.
MR LLOYD: No, but although his Honour does not refer to it – perhaps I should draw the Court’s attention to section 60 of the Act which, presumably, is a power which the Tribunal would have by operation of section 415 which gives it the same powers as the Minister. It only is basically the same thing, a facultative power. Under subsection 2 it says:
An applicant must make every reasonable effort to be available for, and attend, an examination.
FRENCH CJ: What is the sanction for non‑compliance?
MR LLOYD: I do not think it goes that far. Presumably, they would think it was in their interests, especially in this case. I mean, it may well be that you could get an injunction, I suppose.
FRENCH CJ: There used to be some omnibus provision, I do not know whether it was in the Crimes Act, for non‑compliance with an obligation imposed by law.
GUMMOW J: Did the Federal Court attend to section 60?
MR LLOYD: No, there was no mention of section 60. If it please the Court.
FRENCH CJ: Just before you sit down, the alternative basis upon which the Tribunal made its decision seems to have been put to one side by both parties below. What was the basis for that because it seems that the Tribunal was saying, well, even if we accepted what you said, the conditions are so changed that there is no real chance of persecution?
MR LLOYD: That is so. The federal magistrate dealt with that and found that that was not properly an independent basis, certainly not one unaffected by difficulties because I think that was not put to him at the hearing and so in the end that is why we do not rely upon it as an independent basis.
FRENCH CJ: Yes, thank you, Mr Lloyd.
MR LLOYD: Thank you, your Honour.
FRENCH CJ: Yes, Mr Lindsay.
MR LINDSAY: May it please the Court. In our submission, the key to this case is in paragraph 125 of the Tribunal’s decision record in the context of the correspondence between the Tribunal, on the one hand, and the migration agent on the other. If your Honours would go to paragraph 125, appeal book pages 34 and 35, the critical passages are, first of all, in the first line of paragraph 125 where the Tribunal identifies particular matters that were “taken into account”. Then in the last line on page 34 and over the page on page 35, the next two and a half lines, the Tribunal records that it:
was not provided with any further details about the applicant’s condition by himself or Dr Khan nor did the medical certificates specifically address the issues raised in Tribunal’s letter of 11 April 2008 or the applicant’s forgetfulness.
In our submission, paragraph 125 is inconsistent with the proposition that the Tribunal gave consideration to the migration agent’s request that an independent medical examination be arranged and it is inconsistent with the proposition that the Tribunal understood and engaged with the case which the first respondent sought to make. In our submission, this analysis of paragraph 125 is reinforced by the Tribunal’s earlier incomplete summaries of the migration agent’s letters and those ‑ ‑ ‑
GUMMOW J: Just stop for a minute, Mr Lindsay. Paragraph 125 is an explication of 124 and of 126, is it not, namely, adverse credibility findings?
MR LINDSAY: Paragraph 125 appears in the middle of some findings, if you like, about credibility, but it is the central linchpin in relation ‑ ‑ ‑
GUMMOW J: No, “the above finding” in 125 is the finding in 124, is it not? I do not know – and 123.
MR LINDSAY: It certainly says in relation to “the above finding” and that may be taken to be 124 but, in my submission ‑ ‑ ‑
HEYDON J: Perhaps it is the finding that the applicant is not a truthful witness which is at the start of 124?
MR LINDSAY: Yes.
FRENCH CJ: It is saying that they have taken into account his various matters but they have not displaced the conclusion that he is not a truthful witness.
MR LINDSAY: Yes. There are a number of findings about not being a truthful witness and they, in our submission, on a fair reading of the decision record, all tie in which 125 directly or indirectly. Those findings, for example, begin with the introductory reference in paragraphs 110 and 111 on page 31. Then there is a finding expressly described as a finding in paragraph 116 on page 32.
Then there is a similar express finding in paragraph 118 on page 33 and another one on page 34 in paragraph 121, and then in paragraphs 123 and 124. Then on page 35 there is paragraph 126 and then the various strings are drawn together on page 36 in paragraph 133 and on page 37 in paragraph 135, which culminates in what is described as the overall finding at paragraph 138 on page 37, and then on page 38, paragraph 139.
Nowhere in the decision record is there a reference to the requests that were made, particularly in the letter of 20 June 2008, that the Tribunal did provide a summary of each of the migration agents’ letters in sequence. That summary, the summary relating to the letter dated 20 May, appears on appeal book page 7, paragraph 32. Paragraph 32 refers to the letter dated 20 May, which was received by the Tribunal on 21 May, and that particular letter is found in the appeal book at page 228. Most of the letter at page 228 might be thought to find some reflection in paragraph 32 of the decision record, but the summary does not refer to two particular paragraphs of the letter dated 20 May. If your Honours would turn to page 228, those two paragraphs are the second and the fifth.
GUMMOW J: Now, look, Mr Lindsay, this case went back. Your client would want to establish his credibility before the Tribunal, would he not? How would he do that if, as it were, he shot himself in the foot by showing that he suffers these mental difficulties which must impair the credit he is trying to establish before the Tribunal? It becomes a problem.
MR LINDSAY: The case may have some difficulties but, in our submission, the first respondent or a person ‑ ‑ ‑
GUMMOW J: I am just wondering how the system is meant to work in this situation.
MR LINDSAY: If the matter goes back, there would be a new Tribunal, which would make its inquiries afresh.
GUMMOW J: After all, the definition of “refugee” requires objective and subjective elements.
MR LINDSAY: Yes.
GUMMOW J: If evidence as to the subjective element is to be impaired by reason of these matters, what is to happen?
MR LINDSAY: One needs to find out what the facts are and understand the quality of the evidence and whether it is affected by deterioration in this man’s health. But your Honours would be aware, perhaps, of section 428, I think, which permits the Tribunal to be constituted, relevantly, by somebody who is medically qualified.
GUMMOW J: Section 428?
MR LINDSAY: Yes, I think so. I will just double check.
FRENCH CJ: This is a sort of a referee process, is it?
MR LINDSAY: I think it could operate that way. I do not think there is any other procedural provision that bears directly upon the topic.
GUMMOW J: There is nothing in 428 directed immediately to medical expertise, is there?
MR LINDSAY: Not specifically medical expertise, but it would encompass that, yes.
FRENCH CJ: Is this anything more than taking evidence? Such a person cannot make findings, can they?
MR LINDSAY: I think that is correct, although your Honour’s reference to a referee is probably an accurate one.
FRENCH CJ: It may be wrong, that reference, it may be more like taking evidence on commission.
MR LINDSAY: In any event, there are ways and means of doing it independently of section 427(1)(d). Section 427(1)(d) is a provision that enables the Tribunal to:
require the Secretary to arrange for the making of any investigation, or any medical examination ‑ ‑ ‑
GUMMOW J: And assume that establishes that the applicant is not competent to give credible evidence on these issues.
MR LINDSAY: No, the Act does not ‑ ‑ ‑
GUMMOW J: Which seems to be what you want to happen.
FRENCH CJ: The Tribunal still has to find some way of reaching a state of satisfaction.
MR LINDSAY: It does, and the requests made by the migration agent in this case had two limbs to it, neither of which was the subject of consideration or reference by the Tribunal. One request was that the Tribunal proceed on the basis of the explanation given by the first respondent initially, which would allow for subsequent deterioration in his health, and the other was a request for an independent medical examination. Neither of those requests was expressly adverted to by the Tribunal and, in our submission, that is part of the difficulty with the procedure that was followed.
FRENCH CJ: The most that gets you to is reliance upon the earliest evidence as the most reliable given by the applicant and, otherwise, findings not that he has been lying or making up stories, but that he has simply been confused and his memory is playing tricks on him, as it were. But that does not get you to any greater level of credence for the subsequent evidence.
MR LINDSAY: No, and depending on a view formed about his health, it may be necessary to adduce other evidence to address any deficiencies in what he himself says.
FRENCH CJ: That was always open to the agent and to the ‑ ‑ ‑
MR LINDSAY: The situation we have with the agent – the agent comes in on 20 May or thereabouts, 2008, immediately sets about assessing the situation and nobody suggests he was acting otherwise than responsibly. He alerts the Tribunal to a difficulty he has. He does that in the letter of 20 May and then he has problems with timing – the time limits that have been imposed by the Tribunal – and it is in that context that he goes back to the Tribunal in the letter of 20 June and says “I have a difficulty. I have tried in a bona fide way to advance the case. I have a difficulty.” It was in that context that the two requests were made in the letter of 27 June.
Now, in substance, what was found by Justice Rares and what we submit is that the Tribunal erred in not considering that and in not considering the case that was advanced. That appears not only, as we say, in paragraph 125 but if you go to the summaries, what appears in the summaries is that each of the summaries of the letters of 20 May and 20 June stop short of any consideration of the sort of case that the migration agent foreshadowed on 20 May and advanced on 20 June.
Now, one of the matters that leads, in our submission, to be accorded some importance in this case is that this is just correspondence - this correspondence from the agent just does not come out of nowhere. It is in response to a specific invitation, a request, by the Tribunal. One might state in a summary form the proposition that the Tribunal, having written its letter, whatever the jurisprudential foundation of the letter of 11 April, and invited a response, was obliged to consider the first respondent’s response before completing its section 414 review.
In our submission, the Court should accept that that was right on a number of bases. They go, in part, to the proper characterisation of the letter of 11 April. If I may deal with some alternative characterisations, it is plain that the Tribunal at least described that letter as a section 424A letter. We see that in paragraph 29 on page 7 of the appeal book in the decision record and it is equally plain that Justice Rares proceeded on the same basis and he did so in paragraphs 5, 9, 16, 30 and 32.
That was in the context of a characterisation of the letter as an invitation under section 424A(1)(c) and the case that we advance on that provision is that it – that provision by implication obliges the Tribunal to consider any comment or response pursuant to an invitation. It would be otherwise, in our submission, quite strange for an invitation to be issued without any corresponding obligation to consider it. That approach was, in substance, the approach that Justice Rares accepted as correct in the first sentence of paragraph 30 of his judgment on page 350. My friend points to the decision of this Court in SZBYR v Minister for Immigration and Citizenship 235 ALR 609 and, in particular, paragraphs [17] and [18] which talk about information.
Section 424A is expressed in terms of the Tribunal giving information and that does, at least, raise some question about whether section 424A is the correct or only source of any power to write the letter. If one has regard to section 424, it may be that that is the more accurate source of any specific power to write the letter and that is a section which authorises the Tribunal to seek information; in this case, facts explanatory of contradictions or inconsistencies. It carries within it an obligation on the Tribunal to have regard to information that is obtained. My friend has not specifically sought to characterise the letter as falling within one particular provision of the Act ‑ ‑ ‑
GUMMOW J: Section 424 confers a power.
MR LINDSAY: It does.
GUMMOW J: You want to say it is coupled with a duty, do you not, because you have mandamus?
MR LINDSAY: The second sentence in section 424(1) contemplates that the Tribunal must have regard to information.
GUMMOW J: There is a duty attendant upon what is produced in the exercise of the power. You want to say that the anterior power is also accompanied by a duty. Is that not what it comes to? You may be right or wrong, but we are going to construe section 424 is that not what we have to do and attend to the particular text?
MR LINDSAY: The proposition that we advance is if the Tribunal, in the context of section 424, gets information, it must have regard to it and what we say is if the source of the authority to write the letter was section 424, then that supports, in our submission, a proposition that it was obliged to consider the first respondent’s response before ‑ ‑ ‑
KIEFEL J: On one view, however, section 424(1) obliges the Tribunal to have regard to the information because it has already identified it as relevant. It is the relevance of it that carries the obligation with it. So if the response carries additional information that the Tribunal has not identified, on that construction it would be difficult to see the obligation attached to further additional information that the applicant puts forward.
MR LINDSAY: There is some force in what your Honour is putting to me, but in this particular case – and one always, perhaps, needs to come back to the facts – the Tribunal had identified the information that it sought and it sought an explanation for the inconsistencies. So it had determined that it would be relevant to ‑ ‑ ‑
FRENCH CJ: But the mandamus in this case is based, is it not, on the failure by the Tribunal to carry out what Justice Rares identified at paragraph 37 as the relevant duty which really sprang out of section 424A, I think, on his approach and that was that the Tribunal had not:
identified the making of the request to it or, if it did, that it considered and then rejected it . . . The tribunal constructively failed to exercise its jurisdiction and failed to have regard to a relevant consideration, namely the request put as a response to its letter under s 424A.
So it was not a matter of not having regard to information, it was a matter of not considering a request; quite a different basis and that is what informs the mandamus. But when you look to what the Tribunal thinks about the mandamus when it reconstituted, well, we have to do this according to law, what does that mean, it is 424A.
MR LINDSAY: The submission that we make is that flowing on from 424 or 424A, as we have said, is an obligation having made a request to consider the response, at least a response that is responsive to the request and that is the submission that we make. The request, of course, stems directly from the information given in respect of the request. If one looks at sections 424A and 424 as alternative sources of a power to write the letter of 11 April, different considerations might apply in the context of section 422B. On our reading of the decision of the Court in Saeed at paragraphs 40 and 41, section 422B would not constrain the operation of common law natural justice principles if the letter was written pursuant to 424, but it may if the letter was written pursuant to 424A, the equivalent provisions being there.
But of course, it is entirely possible that what the Tribunal was doing, in writing its letter, was seeking to comply with the obligations perceived fairly under section 420, and advancing in more broadly‑based terms the inquiry that is the ultimate obligation it has under section 414. But in any event, however one looks at it, in our submission, the basic proposition is if the Tribunal asks, there must be a reason for it asking, and it is bound, in our submission, to at least consider the response. It stands, we would say, to reason.
Now, the case which the first respondent sought to make in response to the Tribunal’s letter of 11 April, via the migration agent’s two letters, was to this effect, that contradictions in the first respondent’s statements may be explained by his poor mental health and memory functions and that to respond fully and responsibly to the Tribunal’s invitation required a further medical assessment of the first respondent. Then the agent had been unable within the time limited for that purpose, and without the assistance of the Tribunal, to arrange for that assessment to be made.
It was on that basis that he made the two requests that appear in the last two paragraphs on page 254 – sorry, the second‑last and third‑last paragraphs on that page. In our submission, it is quite plain that they were not in fact considered, in our submission, and Justice Rares, in our submission, was correct in substance when he concluded that applying the principles in Yusuf, there had not been consideration of those requests, and ‑ ‑ ‑
GUMMOW J: The author of the letter at page 254, in the third‑last paragraph:
I would like to request you to assess his application based on his original application and evidences considering his mental health.
That was not to be treated as an application of the Minister exercise powers under section 60, was it?
MR LINDSAY: It certainly is not expressed in precisely those terms, but if your Honour will excuse me ‑ ‑ ‑
GUMMOW J: Coupled with an undertaking by your client to make every reasonable effort to be available for such examination.
MR LINDSAY: It follows, one would have thought, in my submission, that that is precisely what he was offering to – he was inviting the Tribunal to ‑ ‑ ‑
GUMMOW J: I mean, in that way, the Act does apply the mechanism for dealing with these situations, but it does not seem to be activated in this case.
MR LINDSAY: If it is correct to say that the Tribunal proceeds as a matter of substance, and proceeds fairly in accordance with the injunction under section 420, a reading of the letter of 20 June invites the Tribunal to engage the case that is being made and either to exercise a power under section 427(1)(d) or to invite the first respondent to proceed a different way, and that may have been by saying further time will be allowed for a further assessment to be made.
FRENCH CJ: The “if required” does not suggest that he was asserting to the Tribunal it was essential they do so.
MR LINDSAY: It may well have been that the letter was written with those words in mind, contemplating that the first of the two requests would be acted upon. What we have here is a request made by a responsible statutory officer who has indicated that he is unable to answer, fully and responsibly, the Tribunal’s invitation without further steps being taken. But it may be that the Tribunal might have acted upon the first request. It simply did not engage either of those requests at all.
CRENNAN J: I suppose one way you could put this is that if the letter from the Tribunal is a 424A letter, the applicant is being notified of reasons why the decision appealed from might be affirmed, so the applicant is being told about issues considered relevant to the grant of a visa. So I suppose on one view it might be possible to say, by reference to section 60, that the letter from the agent is raising the mental condition of the applicant as relevant to the grant of a visa because it is the inconsistencies to which attention has been drawn by the section 424A letter that may impede the grant of a visa. They are identified as the reasons why the decision appealed from may be affirmed.
MR LINDSAY: The issue, having been raised, and having been raised in response to the issue of an invitation by the Tribunal, in our submission, what is clear cannot happen is that the response is simply ignored, but how, at the end of the day, it might be dealt with in terms of ultimate result gets to a consideration of the merits rather than the procedure and we are focusing on the procedure that would be followed.
What this applicant has is done, through the migration agent, has to been to indicate a preparedness to submit to an independent medical examination and to pursue that course. It may well be that that would engage section 60. It may well be that the Minister would proceed in terms of something under section 428. But what needs, in our submission, to happen is that there be some consideration of a responsive response to the invitation actually made by the Tribunal.
GUMMOW J: There is a provision that says the Tribunal exercises powers of the Minister, is there not, a general provision?
MR LINDSAY: I think 415.
GUMMOW J: Yes. It is a mistake, perhaps, to look at these Tribunals as if they sit in separate boxes which are not connected to the rest of the Act.
FRENCH CJ: Justice Brennan, when he was on the AAT, referred to the continuum of administrative decision making and that is really – this is, I suppose, especially when you see that conferring of the ministerial powers.
MR LINDSAY: There may have been a number of ways in practice that the Tribunal may have proceeded had it adverted to the requests that were made of it and had it considered what it would do. The defect in what has happened is that it has not done any of those. We might speculate about the variety of different procedures but the Tribunal did not engage the problem and that is the vice in the course that has been adopted, in our submission. In essence, the Tribunal did not recognise the case that was being made by the first respondent through his migration agent and it ought to have done so. The failure to do so, in our submission, lies at the heart of the decision it then made on the merits.
FRENCH CJ: This has all to do with the assessment of the evidence being put before the Tribunal. It has nothing to do, ultimately, with the capacity of the respondent.
MR LINDSAY: We are focusing on procedure and ‑ ‑ ‑
FRENCH CJ: In terms of outcomes, what you are directed to is the way the Tribunal deals with the question of inconsistency and the material that was able to be put before it and the whole purpose of the additional examination requested can only have been to cast light upon that and to assist it in its assessment of that.
MR LINDSAY: Yes. We are focusing on procedure. It is not a merit review. It is directed to the legal ‑ ‑ ‑
FRENCH CJ: No, I was not talking in terms of merit review. I was just saying the capacity is out of the ballpark.
MR LINDSAY: Yes. I accept that. In our submission, the sorts of cases that call for or provide some analogy with which we would invite the Court to engage are summarised in Swift v SAS Trustee Corporation [2010] NSWCA 182. I believe that is a case that has been brought to your Honours’ attention earlier in the week. It is a statement by Justice Basten at paragraphs 45 to 47. We have copies which can be handed up shortly. Also, in our submission, the sort of problem we have here is similar to that which confronted Justice Gummow in Broussard 21 FCR 472 at 483 insofar as the Tribunal did not come to grips with the case that was being made by the first respondent.
GUMMOW J: That is an AD(JR) case, is it not?
MR LINDSAY: It is. That is undoubtedly it. My reference to the Swift Case was to draw together the learning but your Honour is quite correct. Broussard was an AD(JR) case and we say it is really providing an analogy rather than ‑ ‑ ‑
GUMMOW J: Which is not insignificant because the AD(JR) Act is drafted on the basis that there should be put out to pasture the notion of constructive failure to exercise jurisdiction and the grounds for review would be spelt out in section 5. You would not have an omnibus and difficult description like “constructive failure”.
MR LINDSAY: The point that we seek to make is that the ‑ ‑ ‑
GUMMOW J: The Parliament in its wisdom has got rid of the AD(JR) Act in many significant areas. This is one and we are back in section 75(v) and we are back in constructive failure to exercise jurisdiction. The omission of that is not for us to deliberate upon but we all have to wrestle with the consequences of it, not the least the Minister himself.
MR LINDSAY: The point that we seek to make – and Broussard simply provides an illustration – is that the Tribunal did not engage with or attempt to understand the case that was being made and that flows from the fact that it simply did not even refer to the requests, either in paragraph 125 which is of critical importance, or in the earlier paragraphs summarising the correspondence.
Now, the third case that we would bring to attention – we have copies as well – is the decision of Justice Kiefel in Rodriguez (2002) 66 ALD 579 at paragraph [25] and that engages the question of whether it was open to the Tribunal to proceed as it did proceed in the second half of paragraph 125 on its imposition of standards, the subject of its expectation. In our submission, what the Tribunal did in the second half of paragraph 125 was really just tantamount to guessing and it ought not to have been permitted to do that. Authorities including the Australian Broadcasting Tribunal v Bond require there to be some probative evidence and, in our submission, there was no probative ‑ ‑ ‑
GUMMOW J: That is an AD(JR) case as well, is it not? It is in the broadcasting structure.
MR LINDSAY: Yes, and one sees that there are similar statements elsewhere, for example, in the Privy Council’s decision in Mahon which is referred to in our list of authorities. At the end of the day, there has to be some rational foundation for what is asserted and, in our submission, there is no rational foundation for the assertion of the expectations that the Tribunal relied upon in the second half of paragraph 125. The cases to which I have referred are available and I would invite the Court staff to make those available to your Honours. Those are the submissions that we would seek to make subject to any questions that come from the ‑ ‑ ‑
FRENCH CJ: Yes, thank you, Mr Lindsay.
MR LLOYD: Your Honour, I have seven short points in reply. My friend referred the Court to section 428 of the Act and the way he put it, at least first, was that it allows the Tribunal to be constituted by a medically qualified person. We say it clearly does not do that. What it did do and in one sense still does do is allow somebody to take evidence, to make a record of the evidence and if a record of evidence is made, then under 428(5) then:
the Tribunal, for the purposes of section 425, is taken to have given the applicant an opportunity to appear before it to give evidence.
Unfortunately, Parliament seemed to have dropped the ball at one point. Section 425 used to say you could go before the Tribunal in order to give evidence, but then they amended 425 so that now you can go there to give evidence and present arguments, but 428 only allows evidence to be taken by someone to give evidence and only substitutes 425 for the purposes of giving evidence. So I think the Tribunal believes, rightly or wrongly, that is basically a pointless thing because they still have to give someone a hearing to present arguments, even if they allowed someone else to take evidence. But in any event, we say it does not inform the matters before your Honour, and it does not provide a basis by which a medically qualified person could take evidence, for example, and then provide comments. That may well be able to be done just under the general processes, but that is not what section 428 is about.
The second point is section 424(1). The duty there is in respect of where the Tribunal has got information it considers relevant. It must have regard to that information. We say that a request for the exercise of an investigatory power is not relevantly information that the Tribunal got. The third point is, my friend posited his case at one point that the letter containing that request, he put it in terms, that the respondent was unable within time to arrange for that medical assessment. The point we make is that simply that is not correct. There was still two weeks left within the 424A period, assuming it was a 424A period, within which there could be a response or they could have asked for additional time. What they did do is just abandon the idea of making out their own case and just leave it to the Tribunal whether or not it considered that it was required. We say that that is wrong.
Then the fourth point is, my friend refers to a migration agent as a responsible statutory officer. That seems to be coupled in their written submissions with the idea that a request by a registered migration agent is somehow special. We say that the Act does not attach any significance and it would be slightly surprising if, for example, the father or brother of an applicant would somehow request from an agent is better than a request from a relative and we say there is no assistance to be gained from that analysis.
Your Honour Justice Crennan asked a question relating to, I think, section 60 and the notion that it may well be that medical evidence that could have been obtained could have been relevant to the grant of a visa but we say that again section 60 is only facultative or permissive. There is no duty to do it. The mere fact that it might have possibly been relevant is not enough to give rise to any relevant duty. My friend relied upon Broussard. Apart from being an AD(JR) Act case, it was a case ‑ ‑ ‑
GUMMOW J: It might be relevant in terms of section 60, quite apart from the refugee context, if there was a health requirement or a contagious disease and so on.
MR LLOYD: That is possibly so, your Honour. Indeed, I accept that, and in fact the health requirement in most visas, I think.
GUMMOW J: That is right.
MR LLOYD: In relation to my friend’s reliance on Broussard, apart from the fact that it is distinguishable by being an AD(JR) Act case, the nub of that case was that the Tribunal or the decision‑maker had not considered all of the integers of the claim and so in referring to not genuinely, properly and realistically considering the claim, the real fault was the failure to consider to the totality of the claim. That has been recognised by this Court in Dranichnikov as amounting to jurisdictional error, but that is not the area where we are in, where there is a part of an integer of a claim that has not been considered.
The last point is the Rodriguez point where my friend said that the Tribunal cannot just guess. We are not saying the Tribunal can guess. The position was the Tribunal had material before it which certainly, at face value, provided plenty of basis to disbelieve the respondent and the question was whether it was obliged to make further inquiries which, depending on what they said, may or may not have borne upon whether he was disbelieved for that reason, disbelieved for another reason or not disbelieved at all and we say that it is not a situation of just guessing. The final matter is, if it is suitable to the Court, we will send a one line note as to the name of that statute early next week. If it please the Court.
FRENCH CJ: Yes, thank you, Mr Lloyd. The Court will reserve its decision. The Court adjourns to 9.30 am on Wednesday, 29 September 2010 for pronouncement of orders.
AT 11.50 AM THE MATTER WAS ADJOURNED
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